Adopting the lowest standard of protection for freedom of speech
Free Online Scholarship (FOS) Newsletter
July 3, 2001
by Peter Suber

Suppose you write an online article supporting evolution against creationism, and find yourself prosecuted for blasphemy in Iran.  Or suppose you wrote on sexuality and found yourself prosecuted for indecency by the Taliban.  Or suppose you criticized the Chinese government and were prosecuted for sedition in China.  If you feel safe because you don't write on these topics, then pick a topic on which you do write.  What if you published an article supporting A's theories and criticizing B's, and found yourself sued for libel by B in B's country?  Now suppose that the United States had signed a treaty agreeing to enforce these verdicts. 

Freedom of speech is our first freedom in the United States.  Is it really possible that the United States would negotiate an international agreement that would subject online speech by Americans to legal judgments by nations with no respect for the free circulation of ideas?  The answer is yes.  This  is exactly what is happening with the Hague Convention on Jurisdiction and Foreign Judgments. 

We do need a treaty to sort out the knotty jurisdictional questions raised by the border-crossing internet.  But the idea behind the Hague Convention is not to write new law on any substantive topics, such as defamation, hate speech, or copyright, but instead to ask signatory nations to enforce the legal judgments made in other signatory nations.  The effect could be that the protection of online speech will sink to the level of the countries with the most odious and intolerant regulations of online content.  If oppressive nations can get their oppressive verdicts enforced in other countries, then suddenly the struggle for liberty everywhere else in the world counts for nothing.

The advantage of the new rules for the private-sector American delegates to the convention is that U.S. publishers can get copyright decisions by American courts enforced in other countries.  Unfortunately, this feature is inseparable from the devastation to free speech.

The American Civil Liberties Union and the American Library Association sent non-delegate representatives to the Hague to argue for freedom of speech.  So did corporations like AT&T, Verizon, and Yahoo, which wanted to prevent the Convention from holding ISPs liable for the content they carry.  All these representatives agree, however, that the drafting conference that just ended on June 20 ignored their arguments. 

The current draft does contain a section allowing judges to refuse to enforce judgments that would violate their own national laws or policies.  But critics argue that giving judges this discretion will not stop plaintiffs and prosecutors from shopping around for a court or nation willing to take up their cause.  Moreover, speech doesn't have to be punished to be chilled.  The prospect that one could be prosecuted for online speech reaching Libya or North Korea under the laws of Libya or North Korea will be enough to lead many writers to censor themselves.  Writers shouldn't have to choose between freedom of speech and freedom of travel. 

The Convention only drafts the language, of course.  It will not become law for Americans until or unless it is ratified by the U.S. Senate.  Look for the Convention to submit final language to participating nations for ratification sometime in 2002.

Lisa Bowman, Global treaty--threat to the Net?,4586,5093109,00.html
From ZD Net News

Boris Grondahl, Your Court Or Mine?,1902,27176,00.html
From The Industry Standard

CPT page on the Hague Convention (many links to documents and critics)
From the Consumer Project on Technology (CPT)

Members of the U.S. delegation to the Hague Convention
From CPT

Hague Convention home page (not up to date)


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